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Jail this reporter, save the First Amendment

It’s time for William Gertz, a member of the Washington, D.C., press corps, to make a small personal sacrifice to improve the ethics of newspaper journalism. He must go to jail. He must go directly to jail and he must acknowledge that by hiding behind the Fifth Amendment in a recent court hearing he has wounded the First Amendment, the foundation upon which all freedoms — not just journalistic privilege — depends.

Here’s the scoop.

Mr. Gertz writes about national security for the Washington Times, Fox News and other news outlets. Lately he has been covering industrial and political espionage from Communist China. As an American reporter who has studied the Chinese language I echo his concerns. But Mr. Gertz has used the wrong methods to cover the right issue. As news articles reveal, he is alleged to have received stolen intellectual property when he quoted anonymous leakers involved in a federal grand jury investigation. It is crime for anyone connected with a federal grand jury to reveal anything about its proceedings. This to prevent the Grand Jury from being turned into a witch-hunt and to protect those innocently accused from having their names dragged through the mud.

To be perfectly frank there are no innocents in this case. In fact the person who wants Mr. Gertz to name his anonymous Grand Jury source is convicted spy Tai Wang Mak. Mak was recently sentenced to 24 years in prison after being found guilty. Now this, ahem, dirtbag is demanding that the judiciary investigate why a supposedly-secret legal process leaks like a political campaign. Material this rich could be a Hollywood movie!

But here’s an unfunny fact: in the United States even dirtbags have rights and even crime-fighters must follow the rules. Indeed, one of the best precedents regarding the rights of criminals was set by Sheriff Andy Griffith of Mayberry, whose integrity and home-spun wisdom made his 1960s TV series so enormously popular.

Below I cite a few lines from a show that aired on October 30, 1967, in which Andy scolds his son, Opie (played by actor-turned-producer Ron Howard) for secretly recording a suspect talking with his lawyer. We join the action as Andy takes away the tape recorder after telling Opie he can’t listen to this illegally-obtained information.

Opie: Pa, you’re erasing the tape.

Andy: That’s what I mean to do. You bugged a conversation between a lawyer and his client. Now that’s violating one of the most sacred rights of privilege.

Opie: But, Pa!

Andy: No buts.

Opie: But if it it helps the law . . .

Andy: Opie, the law can’t use this kind of help because whether a man is guilty or not we have to find that out by due process of law.

(Here is a fair use copy of the clip so you can check my transcription: andy_griffith-1)

Now Andy and Opie weren’t dealing with national security. And it may be that people accused of crimes against the nation-state do not or should not have the same rights as the ordinary thugs who might rob, rape or kill Americans.

Mr. Gertz naturally has his own views of this GrandJuryGate. They are laid out in an affidavit explaining why he should not have to reveal who whispers things in his ear. He calls himself an investigative journalist, which is like the reporter’s equivalent of a SWAT team.

But correct me if I am wrong but there the just five elements to journalism — who, what, when, where and why. If Mr. Gertz leaves out the “who” than he he does just 80 percent of the job, not the 110 percent we’d expect from an investigative reporter. Even giving him credit for 80 percent is generous. Journalists deserve a failing grade when they use anonymous sources because they deprive Americans of the most important tool for evaluating any statement — who said it?

On the other hand, let’s not make too much out of the fact that when Mr. Gertz was hauled into court recently — at the insistence of the dirtbag’s lawyers — he pled the Fifth. The Constitution gives all American, even reporters, the right to avoid self-incrimination. I would no more cast aspersions on Mr. Gertz for invoking that right than I would fault those who were called before the House UnAmerican Activities Committee during the late 1940s and early 1950s for refusing to incriminate themselves when asked whether they were communists or fellow travelers.

But Mr. Gertz has created an ambiguous situation that reflects badly on professional journalism. For one thing his refusal to back up his work could make people wonder whether he is like Jayson Blair, the lying liar who wrote fiction, not journalism, for the New York Times.

Furthermore, Mr. Gertz’s posture in this case suggests an “ends justify the means” approach more consistent with communism than with the American values of Andy of Mayberry.

I do not know whether Mr. Gertz makes stuff up and I rather doubt that he is a communist, but to remove any ambiguity he should march back into court and say: Your Honor, breaking the story of Chinese espionage and my keeping my word are both so important that I insist on being jailed. And than he should fold his arms in stoic silence. Otherwise, people might think him a coward and a liar who expects the Justice Department and the judiciary to bend the law to aid his gossip-mongering.